Florida’s beaches are critical to the State's economy and provide significant protection for upland property, but erosion from natural forces, coastal development, and construction and maintenance of navigation inlets threatens the beaches’ ability to provide these vital services. Of the 825 miles of sandy beach in the State, over 485 miles (about fifty-nine percent) are eroding, with 387 miles of beach (about forty-seven percent) experiencing ‚critical erosion. To protect and manage critically eroding beaches, the Legislature enacted the Beach and Shore Preservation Act (BSPA) directing the State to provide for beach restoration and nourishment projects. The State has spent at least six hundred million dollars on beach erosion control and beach restoration, and the Florida Department of Environmental Protection (DEP) now manages over two hundred miles of restored beaches. In 2006, the Florida First District Court of Appeal put the Florida Beach Erosion Control Program in jeopardy, however, by finding that the BSPA deprived the beachfront property owners of their constitutionally protected riparian rights without just compensation. The case eventually worked its way to the United States Supreme Court. But in the U.S. Supreme Court, the issue of focus was not so much whether riparian rights had been unconstitutionally taken - a unanimous Court agreed they had not - but whether the constitution encompasses a doctrine of judicial takings. This article reviews the Florida and U.S. Supreme Courts' dispositions of the case. Although the State prevailed in both cases, from the Florida perspective, the case left many questions about the legal status of beach restoration and application of the BSPA. At the U.S. Supreme Court level, the case provided a flimsy vehicle for Justice Scalia to introduce his theory of judicial takings. Nevertheless, none of the Justices categorically denied the existence of the concept of a judicial taking; four Justices specifically adopted the doctrine, and six Justices agreed that state supreme court decisions that eliminate existing property rights might be unconstitutional. In the end, the case left the law unsettled in a way that will likely incite property rights advocates to continue to cause "much ado".

Notwithstanding the existence of flowage easements on the affected properties, there is still a fair chance that the owners of the land flooded by the opening of the Morganza Spillway will file a takings suit against the government. The owners of the Missouri farmland flooded when the Corps breached the Birds Point levee near Cairo, IL a couple of weeks ago have already filed a takings suit in the U.S. Court of Federal Claims (Case No. 11-275), even though those properties are also located in a floodway and are subject to flowage easements.

In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it.

Ben Barros

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In case you've been living in a cave for the last few months, it's been raining a lot in the middle of the country. Here in Lexington, we've got lots of wet basements and leaky roofs; But along the Mississippi River, the consequences of too much water are far more serious. In 1927, for example, the river flooded 27,000 square miles, displaced 600,000 people, killed 250, and caused $400 million in property damage.

As water levels of the Mississippi near record levels, the Army Corps of Engineers is taking steps to ensure that there isn't a repeat of 1927. This weekend, the corp opened the Morganza Spillway for the first time in 40 years. The Morgnaza is a huge flood control system that can divert water out of the Mississippi and away from New Orleans and Baton Rougue. Unfortunately, the water has to go somewhere else. The water that flows out of the Morganza will pour across farmland and destroy homes before heading into the Gulf of Mexico.

The property question is, what happens to the towns and farmland in the floodway? Why can the government flood homes here to save property there? Does the flooding caused by the Corp amount to a taking?

It seems that it does not. According to Tulane University geographer Richard Campanella, the federal government purchased flow easements from the property owners in the 1950s that allows it to store water on the land. The Corp also sends residents yearly written notices to remind them of the possibility of opening the floodway. Despite the threat of flooding, a number of folks took the calculated risk to invest in the flood plain.

The Institute for Justice helped the owner of a small boxing gym in National City, California file suit challenging the municipality's redevelopment plan. National City intended to declare 700 properties as "blighted," level the entire area, and then construct new condominiums. However, a trial court in San Diego found that National City lacked a legal basis for the blight declaration. Ilya Somin at the Volokh Conspiracy notes that the "National City case is a particularly egregious example of the widespread phenomenon under which local governments use of dubious blight designations to condemn property and transfer it to politically influential developers and other interest groups. The City declared a vast area to be “blighted” on the basis of extremely dubious evidence, and then refused to even make the evidence available for public scrutiny." Here's the IJ's press release. And here's their video on the case:

Many are trumpeting this case as a victory for post-Kelo state-level reforms. Before jumping on that bandwagon, I think it's important to note that the Kelo Court, for all the grief the its taken, probably would have come out the same way on this case. Stevens' opinion takes process seriously. If National City was as loosey-goosey with then blight designation as Somin and other indicate, then it doesn't get by Stevens (or Kennedy). Kelo isn't perfect, but it didn't wipe-out property rights.

The plurality opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection articulated a new doctrine of "judicial takings," and justified it with arguments drawing on text, history, precedent, and "common sense." This essay argues that the opinion falls makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.

I had the great good fortune of having my colleague Ken Port, Director of William Mitchell's Intellectual Property Institute and Japanese law scholar-extraordinaire, visit my Comparative Property Rights seminar this week. Besides some very interesting historical information regarding Japan's adoption and adaptation of the German civil law system in the 19th century, we focused on some unique features of Japanese property law that may make recovery and rebuilding in Japan more difficult than it would be otherwise.

One impediment arises from the Japanese version of concurrent estates. Japanese law recognizes one version of co-ownership of property, which is without precise parallel to any of the estates recognized in the Anglo-American common law. Each co-tenant has the right to use the property in proportion to her share, but no co-tenant can alter the property without the permission of the other co-tenants. Moreover, there is no right of survivorship among co-tenants; the deceased tenant's share passes by will or through intestacy.

The problem with this form of co-ownership in post-tsunami Japan should be immediately apparent. Co-owned property cannot be altered without the agreement of all of the co-tenants. Therefore, rebuilding cannot take place until the co-tenants reach agreement. In the tsunami stricken regions, even if the property itself can be identified without boundary markers and in a land physically altered by the tsunami, locating all co-tenants is likely to be extremely difficult if not impossible. Many co-tenants are, unfortunately, likely dead; their interests must be distributed through will (often destroyed with the home) or through intestacy. Locating heirs may be difficult if not impossible, since many heirs may also be dead, and their heirs must be located. After that nearly impossible task has been completed, all of the interest holders must reach agreement on whether, and how, to rebuild or attempt to sell.

In the United States, governments faced with insurmountable coordination problems and transaction costs might cut through them by exercising the power of eminent domain. Although Article 29 of the Japanese Constitution authorizes the government to take private property in return for just compensation, the ability of the government to exercise that power is severely limited compared to the United States, both legally and normatively. It is limited legally because civil courts in Japan lack the contempt power, so they lack a means of enforcing their rulings. Therefore, unlike in the United States, in Japan courts cannot send armed agents of the state to enforce an eviction order.

More importantly, normatively, there is deep opposition to the exercise of the eminent domain power in Japan -- much deeper than in the U.S. Consider, for example, what happened when the Japanese government tried to build Narita, the main airport serving Tokyo, by using eminent domain to expel inhabitants of a small village. The plan met with widespread, and sometimes violent opposition, not only from those displaced but from those the airport was intended to serve. I quote from Ken's book to describe the level of opposition :

The airport was supposed to open on March 30, 1978. . . . Hurling Molotov cocktails and driving a flaming vehicle through the perimeter of the airport, [protesters] briefly occupied the completed control tower. They proceeded to destroy most of the air traffic control equipment and delayed the opening of the airport for two months. . . . . Until the early 1990's, Narita Airport appeared to be under armed siege. The entire airport was surrounded by unclimbable fences, lookout towers and armed police in full riot gear.

During the decades of protests, 3 policemen and several protestors were killed.

In other words, the exercise of the eminent domain power in Japan is legal, but often socially unacceptable. Therefore, to rebuild after the tsunami, Japan may have to undergo something much more difficult and more fundamental than just changes in law; it may have to undergo a change in norms as well.

Mark A. Edwards

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We covered non-conforming uses in class today, specifically the AVR, Inc. v. City of St. Louis Park case. My students, having read Lucas in Constitutional Law a few weeks ago, posited that a rezoning would not constitute a regulatory taking. I disagreed. My argument (and please consider that I have not studied Constitutional Law since 1999) is that if: (1) a municipality changes the zoning of an improved parcel of land (for example, rezones land occupied by a ready cement plant as residential); (2) the re-zoning diminishes the value of the underlying real estate; and (3) the municipality forces a change in use; then a compensable regulatory taking has occurred.

Based on approximately 20 minutes of research, I can't find any cases where this has occurred. I posit that this is because states either: (1) protect lawful nonconforming uses, thus preventing the above scenario from occuring frequently enough for me to easily locate a case; or (2) have adopted amortization periods, which are predicated on the idea that the value of the use will fully amortize over a certain period of time, so that when the prior lawful use is brought to an end, there is no loss to be compensated.

I think that my conclusion is consistent with Penn Central. If there is a lawful nonconforming use, then the owner had an investment-backed expectations in that use. If the government cuts short that use, then there is a compensable taking.

I am sure someone has written a brilliant article on this topic that I have not yet found. Any references to said article or other feedback would be much appreciated.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an "established" property right "no longer exists" may amount to an unconstitutional taking. The opinion draws on two fundamental threads of Justice Scalia’s property jurisprudence: the first is the notion of property as a pre-political, immutable partition between individual interests and permissible government action; the second is a general distrust for the state courts that are tasked with declaring these individual property rights.

This Article has two primary purposes. First, it compares the judicial takings standard established by the plurality to previous discussions of federal constitutional review of state court property declarations, both in prior judicial decisions and in the academic literature. Second, it considers whether the plurality’s standard could be interpreted as applicable not only to state court decisions that allegedly result in a private-to-public reassignment of property, as the petitioners in Stop the Beach Renourishment claimed, but also to two additional instances: (i) adjudications of property disputes between two private parties or (ii) any allegedly improper judicial change in non-property areas of law where damages would serve as the remedy. The Article concludes that the plurality’s judicial takings standard arguably is inclusive of more state court rulings than any standard presented by earlier courts and commentators. Depending upon the breadth of its reach, this standard could serve to chill the ordinary operation of the common law system as responsive to changing conditions.

Ben Barros

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Frequent readers may remember that an important tenet of my property teaching philosophy is that the struggle over property rights has a central place in history. I've argued that we might undersell the importance of property rights by focusing so intensively on the doctrinal trees that we miss the political-economic forest.

One way I like to discomfort my students, and bring into stark relief the historical importance of property rights, is by examining the emancipation of slaves through the lens of the Takings Clause.

The Takings Clause may seem (and, I think, is) a somewhat callous and inadequate lens through which to view the abject horror of slavery, but that's exactly how some framed the issue 150 years ago. In a debate on the Senate floor, Henry Clay (for one) argued that emancipation of slaves would be a taking of private property, requiring just compensation of the slave owners. Anticipating the reply that emancipation could not be a taking because humans could never have legitimately been property, Clay said (I like to imagine coolly), "That is property which the law says is property."

In both my first year course, and my Comparative Property Rights seminar, I make my students debate that proposition. I ask them simply: Is it true? Most say no. So then I ask: If law can't tell us what is property, then what can? No one, myself included, seems to be able to answer that.

All that is a prelude to telling you that for the past few weeks, the New York Times has been running a wonderful feature, Disunion, which provides a day-by-day analysis, using primarily contemporary accounts, of the descent into the Civil War immediately preceeding and following Lincoln's election in 1860. For history buffs like me, it's fascinating. I find myself more eagerly concerned about the daily news from November 1860 than the news on the front page.

The news from this week (minus 150 years) has been particularly ominous. Southern state legislatures are meeting to 'discuss' secession in the wake of Lincoln's election, but the extreme rhetoric of the meetings leaves no doubt that horrible violence is at hand. Members of the cabinet of the sitting President are preparing to join them. The federal government is teetering.

Meanwhile, President-elect Lincoln has remained maddeningly silent. Finally, the pressure becomes unbearable, and through Illinois Senator Lyman Trumbull, Lincoln attempts to reassure the South: "when Trumbull told the crowd that under Lincoln, all the states will be left in complete control of their own affairs, including the protection of property, those in the know believed they were hearing the words of the president-elect." The meaning of Lincoln's pledge to protect property was unmistakable. Lincoln was attempting to tell the South that, in Clay's words, that was property which the law said was property -- including human beings. For Lincoln's admirers, that pledge may come as a shock. He was not yet fully committed to emancipation.

But, of course, nothing Lincoln could say or do would reassure the Southern legislatures. They didn't trust him or the abolitionists who supported him. War was on the horizon. Within five years of that week in November, 600,000 Americans would be dead.

As I like to say to my students, when it comes to property rights, damn right, there will be blood.

Interestingly, in hate-laced rhetoric that resonates today, secessionists cast Lincoln and Vice President-elect Hamlin as something 'other' than bona fide Americans. Southern media and politicians constantly accused Hamlin in particular of having “black blood in him,” or being descended from Native Americans. One Southerner wrote to Lincoln, offering to buy the "intelligent mulatto boy" Hamlin from him.

The Disunion series is a fantastic teaching tool on lots of levels, but it is a treasure trove on the historical centrality of property rights. Check it out.

Mark A. Edwards

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In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.

In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.

I've already touched on some of these issues in various blog posts (e.g., here). Comments of all sorts would be very welcome.

Ben Barros

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This essay explains how a 2006 court decision arising from the manufacture of the F-22 Raptor fighter jet paves the way for government-owned General Motors to steal intellectual property. In Zoltek v. U.S., the Court of Appeals for the Federal Circuit held that a loophole in the Tucker Act (28 U.S.C. § 1498) prevented owners of patented processes from suing the federal government for certain types of unauthorized uses of their patents. The Zoltek court also held that patents are not secured as constitutional "private property" under the Takings Clause of the Fifth Amendment. At the time, many judges and lawyers thought that these statutory and constitutional loopholes for patent-owners were insignificant; at worst, they argued, this benefits only military contractors and the like.

Fast forward four years and the federal government now owns the "new GM." It was inconceivable in 2006 that Uncle Sam soon would be in the business of making cars, not to mention in the businesses of banking and insurance, setting salaries of CEOs, purchasing mortgages, etc., etc. This dramatic turn of events means that court decisions that once seemed exceedingly narrow have acquired new breadth and scope. This essay thus explores how Zoltek justifies extensive infringement of U.S. patents by GM and other firms now working for the federal government. Although it is arguable that denying patent-owners their constitutional rights is insignificant in any situation, the events since 2006 at least suggest that many people spoke too soon when they claimed that Zoltek was of little import or concern.

Ben Barros

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This article reviews recent scholarship invoking the prophetic tradition in American jurisprudence and calling for the transformation of property law. It contrasts imposed top-down social change with Burkean and Oakeshottian gradual change derived from conversation within our legal and cultural tradition. The work of Robert Ellickson is presented as illustrating the development of property law in the Burkean tradition. Transformative property scholarship, on the other hand, largely reflects Osborne and Gaebler's view that government should steer and private actors row, reinforced by Thaler and Sunstein's call for soft paternalism. The article asserts, however, that Kant and Berlin's admonition that all of humankind is "crooked timber" precludes officials from a privileged position, a postulate well supported by public choice theory.

The article views the change in conceptual thinking from Hohfeldian property to Heller's anticommons and assertions of disintegration and entropy of property. These set the stage, for instance, for advocacy of "rightsizing", through the shrinking private parcels through smart growth and densification, and the supersizing of government-controlled land through condemnation for urban redevelop.

Other topics discussed are regionalism, new governance, and the creation of affordable housing, through, among other things, the rearrangement of traditional landlord-tenant relationships. The article expresses skepticism that flaws inherent in the top-down transformation of property would permit outcomes that are coherent and effective, and could withstand capture by affected interest groups.

Ben Barros

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As I mentioned in a prior post, I am working on an article on Judicial Takings after Stop the Beach. In that prior post, I discussed the private-private v. private-public distinction and its significance for judicial and regulatory takings. In this post, I will make two further arguments about the judicial takings standard. First, there was no need for the Court to address the judicial takings standard in Stop the Beach. Second, there is no need for a unique judicial takings standard, and judicial takings cases can be analyzed under the Court's current takings standards. As with the prior post, what follows is largely text from my draft article, with footnotes removed. I will probably post the article on SSRN sometime in the next week or so.

The Supreme Court Did Not Need to Resolve the Judicial Takings Standard in Stop the Beach

The three opinions issued by the justices in Stop the Beach contain a significant amount of discussion of whether the Court needed to reach the issue of the substantive takings standard applicable to judicial takings cases. Justice Scalia’s plurality opinion argued that the Court needed to reach this issue; Justices Kennedy and Breyer each argued in concurrence that the Court did not need to reach this issue.On the surface, this debate might seem to be of largely academic interest, because none of the opinions issued in Stop the Beach commanded a majority of the Court. If Justice Scalia’s opinion had commanded a majority, then whether the Court needed to reach the issue of the substantive standard might have mattered a great deal – if the Court did not need to reach this issue, then Justice Scalia’s discussion of the standard might be discounted as mere dicta. Because Justice Scalia did not command a majority for his position, his discussion of the substantive judicial takings standard is not binding precedent, dicta or not. On further consideration, however, resolving the issue of whether the Supreme Court needed to reach the substantive standard will be critical to lower federal courts deciding judicial takings challenges, because those courts themselves will have to decide whether and when they need to address the substantive judicial takings standard.

Justice Scalia’s argument for the proposition that the Court needed to resolve the substantive standard is straightforward: the Court cannot decide whether there has been a judicial taking until it decides what constitutes a judicial taking. Thus, in critiquing Justice Breyer’s position that the Court need not reach the issue, Justice Scalia wrote: “Justice Breyer cannot decide that petitioner’s claim fails without first deciding what a valid claim would consist of.” Justice Breyer responded by asserting that “courts frequently find it possible to resolve cases – even those raising constitutional questions – without specifying the precise standard under which a party wins or loses.” Justice Breyer also noted the consistent theme in the Court’s prior decisions of the importance of deciding only the narrow issue presented by a case. For his part, Justice Kennedy also argued that it was a bad idea for the Court to reach out and decide issues that it need not reach before those issues had been considered in the lower courts and by commentators.

Justices Breyer and Kennedy have the better of this argument. Justice Scalia, of course, was correct that a court needs to have at least some idea of the applicable substantive standard before it resolves a party’s claim. But Justice Breyer was also correct that in some cases a court need not resolve the specific standard before it rejects a claim. Consider a common law court deciding for the first time whether to recognize a doctrine of felony murder in a case where it turns out that the victim is still alive. The court would be entirely correct to decide the case without resolving the specific felony murder standard, because on any conceivable analysis, a murder prosecution requires the victim to be dead. Although the law on judicial takings is still wide open, everyone would agree that to state a judicial takings claim a property owner would have to demonstrate that a state court judicial action was a departure from, or inconsistent with, the prior property law in that jurisdiction – if a state court holding is consistent with the state’s prior property law, then nothing has been taken from the property owner. (See Lucas). Alternatively, this same point can be made in terms of a comparison to takings by the legislature or the executive. Under no theory of judicial takings could a judicial action be a taking if it would not be a taking for the legislature or the executive to do the same thing. A legislative or executive action is not a taking if it is consistent with the state’s background principles of property law. (again, see Lucas). For a takings claim to be made, the property owner must establish that something was taken. In Stop the Beach, the Court unanimously concluded that the Florida Supreme Court’s holding was consistent with the prior Florida law on beachfront property. Under no conceivable standard, then, could the Florida Supreme Court’s holding be a judicial taking, and the United States Supreme Court therefore did not need to reach the specific substantive standard for judicial takings to reject the Petitioner’s claims.

Justices Kennedy and Breyer were also correct to argue that it is unwise to reach an issue if it is unnecessary to do so. An overarching theme of this Article is that the issues presented by judicial takings are far more complex than the Court’s opinions in Stop the Beach (including those by Justices Kennedy and Breyer) might suggest. Had the Court finally resolved any of these issues in Stop the Beach without recognizing their complexity, it might have created more problems than it solved.

Lower federal courts considering judicial takings claims would therefore be wise to resolve only the narrow issues presented by any particular case. Under any conceivable theory of judicial takings, a judicial taking can only occur if the challenged state court holding is inconsistent with the state’s prior property law. If a court concludes that the challenged state court holding is consistent with the prior law in that state, then the court should reject the judicial takings claim without reaching the issue of the specific judicial takings standard.

There is no Need for a Unique Judicial Takings Standard

The logic of judicial takings rests on two basic points. First, the judiciary is a state actor, and is subject to the constitution. Second, the judiciary is capable of taking property. The first point seems incontrovertible, and the examples of judicially mandated private-public transfers discussed in my prior post demonstrate that the second is true as well. As Justice Scalia argued in his Stop the Beach plurality, “the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.”

On this logic, there is no need for a unique test for judicial takings. A judicial action should be considered a taking under the Just Compensation Clause if the equivalent action would be a taking if it was performed by the legislature or the executive.

The prototypical judicial takings fact pattern involves a change in property law by a state judiciary. Although this fact pattern may appear to be superficially different from the standard regulatory takings case, it in fact fits very well into the structure of the Court’s existing regulatory takings jurisprudence. The Court has considered takings challenges to legislative changes to property law that are similar to changes that might be made by the judiciary. In Hodel v. Irving, for example, the Court held that a legislative change to rules relating to the transfer of property at death was an unconstitutional taking. It is important to note (as discussed further in my prior post) that Hodel involved a private-public transfer – the change in law resulted in the property interests in question escheating to the state at death, rather than transferring to another private person. For present purposes, it is sufficient to recognize that it is easy to imagine a state court making the type of change in law that the legislature made in Hodel. It is similarly easy to imagine state court decisions making other types of changes to the law that would resemble other branches of the Court’s regulatory takings caselaw. The private-public transfer scenarios discussed in the prior post that involved judicial alterations of use rights in property that could easily be analyzed under cases such as Penn Central and Lucas, and of judicial requirements of public access to private property that are similar to those at issue in cases like Kaiser Aetna and Nollan.

There can be little question that a legislative or executive action that simply declared that previously-recognized property rights no longer existed would be a regulatory taking under the Court’s existing takings jurisprudence. The dominant theme of the Court’s most recent regulatory takings cases is that a government action is a taking if it is the equivalent of an exercise of eminent domain, and this principle of equivalence prominently featured in Justice Scalia’s Stop the Beach plurality opinion. The declaration that a property right no longer exists is certainly the equivalent of the taking of that property right through eminent domain. Prior to each government action, owners held private property rights; after each, those rights were held by the public. Thus, as Justice Scalia argued in Stop the Beach, “If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.” In his opinion, Justice Scalia placed his emphasis on “or a court.” Here, I would place the emphasis on “a legislature.” The branches of government are equivalent in this context, and there is no need to create a unique standard for judicial takings.

Ben Barros

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I've been working on a fairly lengthy post-Stop the Beach article on judicial takings. I will probably post the article on SSRN in a week or so. In the meantime, I wanted to blog about a distinction that is at the core of my arguments in the article. As I explain further below the fold, government actions that mandate the transfer of property interests from private property owners to the public ("private-public transfers") should be distinguished from government actions that mandate the transfer of property interests between private persons ("private-private transfers"). I argue that judicial takings, and regulatory takings more broadly, should apply only to private-public transfers, but not to private-private transfers.

I am curious about Justice Scalia's position that courts may not
eliminate "established private property rights." What do such rights
consist of? For example, assume that a state court decides to move from
a "good faith" approach to adverse possession to an "objective"
standard, which will allow some possessors to prevail, even though they
knew the land they were occupying was not theirs. This is a standard
"evolution" of common law, yet it does, under Justice Scalia's rigid
formulation, result in a party losing property that it would not have
lost under the old common law test. Is that a "taking"? Can the court
NOT change such a common law test without having to compensate property
owners?

To me, such a change in adverse possession law involves a private-private transfer, and should not fall within the judicial takings analysis. In excellent posts taking up Jerry's question, Lior Strahilevitz and Eduardo Penalver both discussed the private-private nature of the change in adverse possession law.

What follows below the fold is a very lengthy treatment of this issue. The rest of the post is taken from a few sections of my draft article, with the footnotes removed. I'd very much welcome any comments on the argument. In particular, I'd be interested in references to similar arguments, if any, that have been made in the existing regulatory takings literature.

This essay, one of a collection of essays on Stop the Beach Renourishment v. Florida Department of Environmental Protection to be published by the Vermont Law Review, has two objectives. First, it attempts to situate the Supreme Court’s debate over the judicial takings concept within the framework of established takings doctrine. The results of this analysis suggest that the justices’ split over the judicial takings concept reflects fundamental disagreement about the relative virtues of per se vs. ad hoc analysis and about the nature of the Takings Clause as a constraint on government action.

Second, this essay assesses the merits of the judicial takings concept by analyzing the core issue of whether court rulings, like actions by the other branches of government, can constitute “takings” within the meaning of the Takings Clause. Contrary to Justice Antonin Scalia’s argument that all branches of government must be treated the same under the Takings Clause, this essay concludes that there are numerous reasons for treating courts differently, including: (1) the judiciary is not vested with the eminent domain power; (2) the rationale that takings liability serves to constrain majoritarian political impulses generally does not apply to the judicial branch; (3) the judicial takings concept would undermine the relationship between the federal and state court systems; (4) the state courts’ institutional structure provides a relatively strong assurance of fidelity to federal constitutional values; and (5) court rulings on property law issues tend to apply broadly across the community rather than single out particular individuals to bear special burdens.

Ben Barros

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This essay argues that, rather than being a constitutional bulwark against environmental regulation, certain kinds of property rights can actually ease constitutional barriers created by current Supreme Court doctrine. These environmental property rights (EPRs) are either rights to prevent environmental degradation (such as conservation easements) or limited rights to impair the environment (such as tradable pollution permits.) Among other possible benefits, these property rights may help nudge constitutional law in a more environmentally friendly direction in the areas of standing, takings, and the federal commerce power.

Ben Barros

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As sandy beach property has become more scarce and more expensive, the controversies between upland owners and public users of the beach have increased. The public has an absolute right under the public trust doctrine to use the beach below the mean high water line (MHWL) boundary that defines the limits of state lands and littoral ownership, but “knowing” where that ambulating line is at any given time is virtually impossible. This uncertainty exacerbates the tensions that in Florida are leading to clashes between private land owners and the public. Setting a fixed boundary would lead to more certainty and consequently less controversy, but both legal and policy issue arise concerning this approach. In once instance, however – setting a fixed boundary between upland owners and submerged, public trust lands for purposes of government restoration of critically eroding beaches – a fixed boundary with appropriate protections for littoral owners seems to address problems of certainty, as well as legal and policy concerns. The Florida Beach and Shore Preservation Act’s (BSPA) use of this approach has been challenged in the Florida Supreme Court and subsequently in the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Protection. This article explores public and private interests in beaches and shores, and how the complexities of coastal boundaries contribute to controversies about the use of beaches. The article then looks at how the BSPA attempts to protect both the private and public interests in the coast through, among other provisions, establishing a fixed boundary for restored beaches. Finally, the challenges confronting Florida’s beach management that have arisen as a result of suits in the Florida Supreme Court and now in the U.S. Supreme Court are analyzed.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]